own Wrong And Note 35 H. 6. 38. where the Plaintiff in Debt did Count upon a Lease of four Acres for the Rent of three Pounds and the Defendant did plead to the Count that he did Let those four Acres and other Lands and a good Plea But the greater Doubt whether he should in that case take a Travers for in our Books it is obvious That if the Plaintiff in his Declaration mistake the beginning of a term of Years the Land or number of Acres or declare upon a simple Contract when it is Conditional the same is no good Declaration and Advantage thereof may be had as well upon the General Issue as otherwise And in Fogassa's Case in Pl. Com. If the Plaintiff Count generally upon a Lease and the Defendant plead ne Lessa pas non dimisit the Plaintiff shall not give in Evidence a Lease by Deed. And 28 29 H. 8. Dier 32. an Action of Debt was brought upon a Lease of six and twenty Acres the Defendant said that the Plaintiff Let the same and four Acres more Absque hoc that he Let the six and twenty Acres tantum whereupon Issue was taken and the Verdict found the Demise only of one and twenty Acres and thereupon the Question was Whether the Verdict had found for the Plaintiff or for the Defendant And by Fitz. and Englefield it was found for the Plaintiff because Agreed of both sides that six and twenty Acres were Let and the Question was upon the four Acres But Baldwin and Shelley seemed to be of Opinion that the Verdict was ill But Shelley said therein That if the Defendant had pleaded a Plea without a Travers because he had confess'd the Count and more it would have been good Or if the Travers had been Absque hoc quod predictus le Plaintiff dimisit les four Acres more it had been well enough But touching this Matter of Travers of the Quantity Time or Place see more in the Titles Travers Issue and Verdict afterwards in this Book And see 11 H. 6. 5. That if in Debt for Rent it appeareth by the Count that one of the Days is not yet come the Writ shall abate but otherwise in Avowry by all the Court Nota diversitatem And see Fitzherbert's Natura Brevium in his Writ of Debt That where divers Days of payment are contained in a Recognizance upon the first default shall go out a Scire facias but upon a Bill for Debt not until the last Day Notwithstanding it hath been held That in an Action upon the Case upon an Executory Promise the Plaintiff might have his Writ upon the first default and Recover for that loss and so upon every default It appeareth by 7 Ed. 4. 15. and 1 Ed. 4. 4. 39 H. 6. 4. 11 H. 4. 55. and 50 Ed. 3. 4. in Brook Title Brief by the better Opinion That in Debt Resceit of Parcel Hanging the Writ doth abate the whole Writ but that as it seemeth is intended where the Count and Demand is of one entire Contract as a Precipe of a Mannor and Entry into part For it is otherwise as it seemeth where a Precipe is of sundry Acres and the Demandant enter into but one of the Acres But by the same Book 50 Ed. 3. 4. that ought to be pleaded Puis le darein Continuance And by most of the other Books if the Action were upon Specialty then it can neither be pleaded to the Writ or in Bar of the Action without Specialty and if the Defendant conclude his Plea in Bar it goeth but to the Action for part But as it seemeth be the Action either upon Specialty or not if the Defendant plead in Bar the Resceit of parcel either before or hanging the Writ he must plead the same by Deed and it goeth but to that part But if the Plaintiff bringeth an Action of twenty Pounds and declare that he is satisfied of ten Pounds the Writ doth abate of his own shewing for he ought to bring his Action only for that which is behind and declare himself to be satisfied of the rest But if he bring his Action for the Whole and Nil debet or a Release be pleaded to Part that goeth but to the same and so it seemeth by the Plea quod non debet predict as vigints libras nec aliquem denarium inde And in the said Book of 11 H. 4. Debt was brought for Forty Pounds declaring part upon a Lease parcel upon a Contract and part for Work done And to part the Defendant tendred his Law to other part he pleaded ne Lessa pas non dimisit and to the residue he tendred the Mony in Court and the Plaintiff as to the Plea of the Lease took Issue and to that of the Mony tendred he Rejoyn'd that he had received it accordingly and as to the residue he refused the Law and to that and the Point of Receipt the Writ only did abate quod nota Where the Writ and Declaration are General as in Trespass Quare clausum fregit if the Plaintiff so Declare the Defendant as all the Books agree may plead a Special Plea to inforce the Plaintaiff in his Replication to assign the Place more certain But this Plea of the Defendant must be also very certain as 4 5 Ph. Mar. Dyer 161. for the Defendant to say That the Place where is six Acres is no Plea unless he also give it a Name or Boundaries And so is 22 H. 6. 24. that the Defendant shall plead certainly and this for the advantage of the Defendant for if he plead the General Issue the Plaintiff may in any Place in that Town assign the Trespass Or else as is the Book 28 H. 8. Dyer 23. If the Defendant doth say that the Place where is six Acres which is his Freehold and the Plaintiff Reply That it is not his Freehold c. If the Plaintiff have a Close of like quantity it shall be intended the same But the Plaintiffs New Assignment must also be as true and certain to all Intents as is 9 Eliz. Dyer 204. It must be both true in the Name and in the Boundaries and must not be as there una acr ' prat ' sive terr' And as 1 H. 7. 11. and 21 H. 6. 2. and other Books the Plaintiff must say also in his Declaration alia quam c. And then as in 14 H. 4. 24. the Defendant shall not plead that the Place where is all one c. but shall have advantage thereof best by the General Issue if the Pleas aforesaid be entred and so is 1 Ed. 5. 4. Yet in the said Book 21 H. 6. 2. the Defendant did Rejoyn that the Place was all one c. and known by one Name But as 27 H. 8. 22. where the Defendant in his Bar said The Place where was an Acre and three Roods the Plaintiff might have assigned the Trespass in the three Roods without the Acre and the Bar as to the
he made Title to the Goods so if he makes Title to the Land by Feoffment But otherwise if he Plead meerly his Freehold And so is 22 H. 6. 24. in Trespass But see 5 H. 7. 28. that in Forcible Entry because the number of Acres is set down in the Declaration as in a Praecipe or in an Assize the Defendant shall not in his Bar give the Land a Name or other Certainty but ought to Plead at his peril But otherwise according to the Ancient Practice in Trespass and Replevin except as before where the Defendant pleaded his Freehold and the Plaintiff did not set forth the Particulars of the Land in his Declaration which he is now of late compelled to by Rule of Court But for the understanding of this and all other Matters relating to Practice more fully and at large see before in the Introduction of this Discourse And further for Certainty in Pleading take these General Observations First see Plowden 32 65 80 81 86 191 229. that which is alledged by way of Conveyance and Inducement to the Substance of the Matter needs not to be so Certainly alledged as that which is the Substance it self as before where a Lease is made to A. and B. for Life the Remainder to C. and if C. die during the Life of A. or B. that it shall go to E. for his Life c. and E. in Pleading shews the death of A.B. and C. but shews no time of their Death And by Plowden 80 121 123 126 128 129. that which a man cannot have Certain knowledge of he is not bound to plead Certainly nor to set forth that precisely that is out of his knowledge or to which he is a Stranger or by Common Intent he cannot see as a Deed that belongs to another Man And by Co. Lib. 9. 108. that shall be said to be Certainly pleaded which may be made Certain by Intendment according to the Maxim Id Certum est quod Certum reddi potest But Co. Lib. 4. 97. and Plowd 395. that is more Certain which is Certain of it self Yet where the Defendant in Pleading makes Title to himself by a Lease Habendum for so many years as I. S. shall name Cum hoc that I. S. did name so many there the Averment makes it Certain enough and good So many times when there is an Incertainty in a Case by the addition of a Reference to a Certainty it may be made good As Perkins Sect. 36. an Estate is granted to I. S. the Remainder to him that shall come first the next Morning to Pauls and one doth come there that is capable this is a good Remainder for it may be made Certain by Averment So Pasch. 39 Eliz. in B. R. Morgan and Iohnson's Case one binds himself by Obligation to pay me all such Sums of Mony as his Brother oweth unto me this by Averment may be made Certain and is good So Plowd 191. if one Grant his Mannors of A. and B. and say not in what Parish or County they are in or make a Lease of all his Lands in the Parish of A. and says not in what County these Grants in Pleading may be made good by Averment So if the King by his Letters Patents grants to one all the Mannors and Advowsons that did belong to the Priory of H. or that were of I. S. who was Attainted These Grants by 32 H. 6. 20. and Co. Lib. 9. 47. may be made good in Pleading by Averment But by Anderson 1 Part 102. an Indictment was upon 8 H. 6. quod intravit in unum Tenementum and held void for the Incertainty And March Rep. Case 168. in Ejectione firmae and Not Guilty pleaded the Jury found them Not Guilty for part and Guilty in tanto ut Ius Mesuagii in Occupatione c. quantum stat super Ripam and the Verdict was held void for Incertainty And so is 40 Ed. 3. 15. and Co. Lib. 9. 74. in Debt brought against Executors who plead plene Administravit and the Jury find they have Assets but say not to what value this is also void for Incertainty And by Plowd 144 and Co. Lib. 10. 40. there must be a precise Affirmation of a thing in Pleading where it relates to Matter of Substance yet if the Pleading hit not the very Words if it contain the Matter by necessary Implication it may be good enough And by Plowd 435. a man is not bound to one Form of Pleading or to the Common Form so he plead the Substance of the Matter And by Hobart 72 78. 124. That need not be said on the one side that will come properly on the other And by Plowd 104. 202. and Co. Lib. 10. 40. If a Plea hath two Intendments the strongest shall be taken against him that pleads it and it shall be taken most for the advantage of his Adversary As in a Release pleaded to an Action of Trespass the time when it was made must be shewed for it might be delivered before or after the Trespass and if not shewed when it shall be taken to be before And Idem Lib. 9. 109 110. where Covin is alledged in the Avoidance of an Act it will be sufficient to shew it Generally for it is secret and can hardly be known and therefore a man shall not be forced in Pleading to shew it exactly or certainly And by Hobart 163. General Issues may be pleaded without any Inducement Lastly By Plowd 84. 63 65. Co. Lib. 9. 109. Dyer 27. Yelv. 103. Hob. 258 297. Truth and Certainty ought to be in Pleading and therefore Falshood Incertainty and Repugnancy ought to be avoided in Pleading And although as hath been said before Surplusage doth seldom hurt the Pleading yet Imperfect Pleading is always dangerous Vide Brook ' s Abridgment Tit. Pleading 94 95 96. 115. Plowd 179. 229. 431. Hob. 23. 208. Dyer 27. and Co. Lib. 7. Butt ' s Case for variety of Matter upon this Subject CHAP. III. Of Replications Rejoynders c. AFter the Defendant has made his Bar or Plea that is to say hath given in his Answer to the Plaintiff's Declaration the next part of Pleading in Course must be the Plaintiff's Replication which is an Answer or Exception to the Defendant's Plea and a Rejoynder is where after the Plaintiff in the Action hath Replied to the Answer of the Defendant the Defendant doth again make Answer to the Plaintiff and if after that the Plaintiff shall Answer again to the Defendant such Pleading is called a Sur-rejoynder As to Replications and Rejoynders the Learning of them is more properly to be seen in every particular Action under their respective Titles of Pleading but touching some Particulars we shall observe First Where the Plaintiff is in some sort bound to Answer the Bar of the Defendant but may notwithstanding Plead at large not answering the Bar which is in a manner altogether in an Assize where a General Bar with Colour is pleaded And by 34 H.
an Action of his own Possession he shall not be compelled to shew the Will or Letters of Administration And so is 21 H. 6. 23. 10 Ed. 4. 1. 16 Ed. 4. 1. and divers other Books although the Plea be but to the Writ as that he is Administrator But 42 Ed. 3. 4. 3 Ed. 3. 31. and 7 H. 6. 41. In Trespass de bonis asportat ' in vita Testatoris he must shew the Will And so is 6 E. 4. 1. and 16 Ed. 4. 8. But by 19 H. 6. he need not shew it in another Term. And this difference of Plaintiff and Defendant is confirmed in Plowden's Com. in Graysbrook and Fox's Case Next we shall shew How the Vouchee shall be forced to shew a Deed. And therefore First by 22 Ass. 88. he that Voucheth as Assignee shall not only shew the first Deed but the Deeds of Assignment also and to that intent is 3 H. 6. and other Books in this Title in Bro. 5. But he may Rebut by the first Deed. Quaere tamen For 3 H. 7. 13 14. seems that he need not shew the Deeds of Assignment upon Voucher And see 48 Ed. 3. 5. That the Tenant in Dower vouching the Heir of full Age yet ought to shew a Deed quod nota But yet see 50 Ed. 3. 25. That in the same Case or in any other as it seems he that doth Vouch one unless he do pray also that the Parol may demur for Nonage shall not need to shew any Deed to the Demandant For which see more at large in Brook and Fitzherbert's Abridgments in the Title Voucher And 10 H. 7. 21. he that Voucheth as Assignee of the Reversion to save the Tail shall shew But Keble è contra and Vouched divers Books And then How an Action may be upon Record without shewing It appears 9 Ed. 4. 5 H. 7. and 32 H. 6. in Brook hoc Titulo 158 159. Be the Action in the same Court or another the Party that brings the Action shall not be enforced to shew the same But if the Record be in the same Court unremoved by Error or otherwise the Defendant may demand Oyer of of the same and shall have it but if otherwise he is bound to take Conusance thereof and to plead Nul tiel Record and thereupon the Record it self shall be sent down by Mittimus And so is 39 H. 6. 4. But by that Book it sufficeth if the Tenor of the Record be Certified And 7 H. 6. 18. one brought Debt in the Common Pleas upon Damages recovered in Trespass at York in a Court of Piepowder containing the Tenour of the said Record in his Count and how it came into the Chancery and thither by Mittimus and yet the Defendant did plead Nul tiel Record quod nota But touching this Point further How the Record shall be Certified and where the Tenour of the Record will serve or not see Dyer 8 Eliz. 250. 6 Eliz. 227. 3 Eliz. 187 188. and otherwise there Then it appears That although one have not the Deed yet if it appear of Record in the same Court pleaded by another at that time he shall have advantage of it As 40 Ass. 34. In an Assize against two the one having a Waranty to Bar the Plaintiff pleaded the same for his part and although he would not suffer his Companion to help himself by the same yet the other took advantage thereof As by Littleton in his Chapter of Estates upon Condition 90 91. If a Deed be once pleaded the other may shew That in the same there is a Condition c. And 24 Ed. 3. 73. the Defendant pleaded a Release which the Plaintiff did deny and after was Nonsuit And in another Action brought in the same Court the Defendant did plead the same again without shewing as a Deed gainsaid remaining in the Court. And by 21 Ed. 4. 48 49. If a man plead Letters Patents remaining of Record in the said Court he shall not shew them and so said to be the use of the Exchequer And 1 Eliz. in Dyer 17. a Lease of a Bishop Inrolled in the Chancery pleaded without shewing and it seems ill by that Book CHAP. VI. Of Pleading in General THen touching Pleading in General more than before hath been discoursed of in the several Divisions And First Where one in Pleading shall shew how he was seised And therefore in some Cases One may Convey to himself an Estate without shewing how he that gave it was seised And by 34 H. 6. 48. in the Writ or Count may be said quod quidam J. S. dimisit That such an one Let without shewing that he was seised Otherwise by way of Bar or Title And so 9 H. 4. 5. 21 H. 7. 26. and 10 H. 6. in a Formedon may say Dedit And next Where one shall say he was seised In Dominico suo c. For which see first Littleton where the Thing lieth in Demean as Land or Rent c. Or where otherwise as Advowsons And 30 H. 6. 7. one of a Way did say In Dominico suo ut de feodo de jure And 21 Ed. 4. 80. of a Copyhold in Dominico suo c. secundum Consuetud ' And see 7 H. 6. Dyer 83. of Tithes one shall say in Dominico suo ut de feodo because palbable c. And see in Wortley's Ejectione firmae in Plowden That of a Reversion dependant upon an Estate for Years In Dominico suo is the proper Pleading but the Plea of De Feodo admitted Then next Where in Pleading shall be said In Iure Uxoris c. See first 27 H. 8. 21. where Lands are given to the Baron and Feme and the Heirs of the Body of the Feme the Plea shall be Quod fuerunt seisit ' simul haered ' de Corpore le Feme And 12 H. 7. 14. the Defendant in Trespass did plead That He and his Wife were seised in their Demean as of Fee and said not In jure Uxoris or Conjunctim and yet good because if he have Title to any part it is not material in what manner And so in Wortley's Case in Plowden of a Term in Right of his Wife Next VVhere more and one Interessed See 37 H. 6. 24. where Lands are given to Two and the Heirs of One of them the Pleading shall be Quod fuer ' seisit ' viz. the one In Dominico suo ut de feodo and the other In Dominico suo ut de lib'o Tenemento And then of the Plea In Iure Coronae 34 H. 6. 34. In a Quare Impedit the Plaintiff made Title for that King Henry the Fourth was seised c. and did not say In Iure Coronae and good for there is said to be no other Form And see 7 Ed. 6. Dyer 83. accordingly touching Religious Lands where the said Book of 34 H. 6. is Vouched and shewed to be the better Pleading And so is 1 2 Mar. Dyer
advantage and the other resting upon the Plea of the Defendant as Misnosmer Iointenancy Non-tenure Non habetur aliqua talis Villa or Over-Dale and Nether-Dale of the Place where the Action is laid and not of which the Defendant is named unless in Cases where Utlary lieth and that the Lands lye in A. and not in B. and the like which the Defendant is bound to take in time and to look that he be not Concluded of them by his General Appearance Continuance or Imparlance as before is mentioned And Note that it appeareth in a Report 3 Eliz. That if the Defendant for Matter apparent plead to the Writ he shall in the beginning and ending of his Plea petere Iudicium de brevi but otherwise in the Conclusion only And touching Pleas to the Action of the Writ they are where by the Plaintiff's own Declaration or the Defendant's Plea it appeareth that the Plaintiff ought not to have the same but another Writ And as 26 H. 8. Brook Brief 409. The Defendant may choose either to Conclude to the Writ or to the Action of the Writ And so 9 Ed 4. 31. where Dower was brought against a Guardian and he said he was not Guardian Iudgment de Brevi In the next place we will proceed to the Form of the Defendant's Pleadings And first touching his Defence against the Plaintiff it appeareth 34 H. 6. 33. and other Books in Bro. Title Defence That in divers Actions as namely Assise Dower Darein Presentment Mortdancestor Per quae servitia Attaint and Scire facias the Defendant shall only say Venit dicit without other Defence And 46 Ed. 3. 23. in an Assise of Nusance in the Common Pleas there shall be Defence otherwise not and in Brook's Abridgment Title Defence Num. 67. where one Pleads to the Iurisdiction there shall be no Defence But it appears in the said Title 2 Ed. 4. and 40 Ed. 3. and 35 H. 6. That where the Defendant pleads to the Person he may make half a Defence viz. Venit defendit vim injuriam without saying quando c. And so is 7 H. 6. there in a Praemunire or Plea to the Jurisdiction it is only said Venit defendit vim injuriam So as by these and other Books in the said Title of Defence it appears that in Pleas to the Jurisdiction or the Person the Defendant as before cannot make above Half Defence For if he adds to the same the words quando c. which make the Whole Defence the ability of the Jurisdiction and Person is thereby admitted but in Pleading to the Writ one may make a Full Defence as appears by all the Books of Entries The Full Defence is in some Cases Ordinary and in others Special And the Ordinary Full Defence in some Actions is Venit defendit vim injuriam quando c. and in others Venit defendit jus suum quando c. and where the Defendant shall in his Defence say Venit defendit vim injuriam quando c. are these Actions viz. Account Action upon the Case Covenant Debt Detinue Ejectment Ne injuste vexes Partition Parco fracto Quare Impedit Quo jure Replevin Rescous Recaptione Averiorum Recto Rationabili parte bonorum Rationabilibus Estoveriis in all Actions where Debt and Trespass are given by the Statute in all Actions of Trespass de Clauso fracto or de Clauso domo fractis with their Incidents as de Bladis herba depast ' conculcat ' consumpt ' succis ' Averiis pedibus ambulando c. or de Arboribus succis ' amputat ' c. or de Sepibus Fossatis Solo Eradicat ' vel amputat ' implet ' subvers ' c. or de Bonis capt ' asportat ' spoliat ' c. or for Battery False Imprisonment or Menacing the Plaintiff or his Servants as also in Waste and other Personal and Mixt Actions But in a Writ of Intrusion and every Praecipe quod reddat Ayel Escheat and the like the Defence is Venit defendit Ius suum quando c. And in some Cases the Defence is more Special than before as Brook Defence 45. In Recto quando Dominus Remisit Curiam suam the Defence shall be Venit defendit Ius praedicti Petentis Seisinam suam quando c. And ibid. 16 40. in Nativo habendo the Defence shall be Venit defendit jus suum omnem Nativitatem quando c. And also vide Ibidem 23 30 31. That in Actions upon the Statutes of Mainteance Labourers and the like and in Recaptione averiorum the Defence is Venit defendit vim Injuriam quando c. Et quicquid c. And in Prohibition upon the Statute of Ric. 2. H. 4. Venit defendit vim injuriam quando c. Et omnem Contemptum Et quicquid c. And in an Appeal of Mayhem as appears 40 Assize 9. the Defence is Ven ' defendit vim injuriam Et omnes Felonias Appella de Mayhemio Et quicquid quod est contra pacem Domini Regis Coronam Dignitatem suas c. And it also appeareth in Brook 46. that where the Defendant pleadeth Misnosmer he shall alledge the same before Defence and then shall make Defence and shew the certainty of the Misnosmer And the Vouchee as it appeareth there Num. 24. shall make his Defence in this manner Et praedictus A. B. ut Tenens per Warantiam suam defendit Ius sum quando c. And Ibidem 14 H. 6. 18. it is a Doubt whether one shall take his Protestation before or after Defence and by 21 H. 6. 't is said That to every of the Plaintiff's Pleas the Defendant shall make his Defence de novo quod nota And touching Protestations we shall first consider what they are and in the next place inform you how and in what manner they ought to be pleaded A Protestation in Pleading therefore is by some defined to be a Defence of Safeguard to the Party that makes it from being Concluded by the Act he is about to do that Issue cannot be joyned upon it Plowd fol. 276 b. per Walsh ibidem Or it is a Form of Pleading when one doth not directly affirm or deny any thing that is alledged by another or which he himself alledgeth But by Plowden in Grayslake and Fox's Case in his Com. it is said to be A Saving or Excluding of a Conclusion and by that Book ought to be after the Defence which is in that Point left doubtful by the before-mentioned Book of 21 H. 6. 26. and may not be contrary in it self or double As in the before recited Case of Grayslake and Fox Protestando that he made no Testament pro Placito that he made not the Plaintiff his Executor because if he made no Testament he could make no Executor And as it there appears the Effectual Matters of
Replication Quod non habetur tale Recordum per quod liquet c. Et hoc paratus est verificare per Recordum illud is contrarient and naught Where it is said also That if a Plea want an Averment or have not a sufficient Averment the same is not good quod nota And it appears by 37 H. 6. 14. that in a Forcible Entry the Defendant pleaded Excommengement in the Plaintiff without any Averment because no Answer is to be made to that Plea But it appears in the Books of Entries That where a Plea is either pleaded to the Jurisdiction or to the Person by Matter en fait as Profession or Villenage there be always Averments whichs seem to be of Necessity by the last recited Book because to these Answers may be made quod nota And Note that by the Book of 37 H. 6. 23. If one have a Plea to the Whole he may plead the same to a Part Where it is said by Moyle That a Release or Iustification or any Matter in the Affirmative pleaded without an Averment of the Plea or pleaded in the Negative as Nil debet and the like without the Conclusion Et de hoc ponit se super Patriam and yet 1 3 Mar. 124. the General Issue was pleaded without that Conclusion and good or to plead a Bar in an Assize without taking the Tenancy upon him where divers are named in the Writ the same is Ill. There needs no General Averment in a Plea or Particular Averment in a Declaration of that which will come in more properly on the other side Hob. Rep. 78. 124. And by the same Reports 88. 106. there will need no Averment in a Declaration where it appears there are Reciprocal Remedies But by the same Book 251. where the Administrator durante minori aetate is Plaintiff in a Suit there the Nonage of the Executor must be Averred Secus where he is Defendant Yet by Sheppard's Abridgment Tit. Averment fo 230. the Executor of a Grantee of a Rent or Reversion expectant upon an Estate for Life may not Avow his Distress without an Averment that the Arrerages incurred after the Death of the Tenant for Life Adjudged And so by Hobart fo 141 142. he that pleads a Dispensation to hold in Commendam confirmed by the Kings Charter must aver the Performance of the Condition contained in it So by Perkins cap. 147. If the Defeasance of a Recognizance be dated before if in this Case any use be to be made of it it must be Averred to be delivered at or after the time of the Recognizance entred into By Coke's Rep. lib. 8. Case of the. City of London and lib. 9. 54. Averment needs not be of what is apparent as the Constitution made in London concerning the Sale of of Wares and Merchandizes appearing to be agreeable to and waranted by their Charter the same needs not be Averred to be so and if the Son bring an Assize of Mortdancestor he needs not to Aver that it is within the time of Limitation for that it appears to be so And by the same Author Lib. 7. 40. although any other Consideration than what is a Deed may not be Averred yet where there is an Express Consideration in it self in the Case as where a Use of Land is limited to a Wife this implies a sufficient Consideration in it self and therefore needs no Averment By Hobart 32. an Averment may be upon a Will but by Co. lib. 5. 68. an Averment will not lye of any thing that is against or besides that which is against or besides that which is expressed in a Will nor of any thing that cannot be gathered to be the Mind of him that made the Will by the Words thereof nor of any thing that doth not cohere with the Will especially if the Devise be of Lands As where one Devises to A. and the Heirs of his Body the Remainder to B. and the Heirs Males of his Body on Condition that he or they or any of them shall not alien c. In this Case no Averment may be taken by Witnesses that it was the Intent of the Devisor to include A. within the Condition by the words He or They c. So neither may an Averment be taken that the Intent was to give it to any other besides the Devisee But by Hobart 50. an Arbitrement in Writing may not be supplied by an Averment And by Bulstrode first Part fo 220. and Popham fo 201. it appears that if Tenant for three Lives make a Lease to another the Lessee in an Action brought by him needs not to aver the Lives under which he claimeth Nor by Goldesborough fo 97. needs he that sueth an Administrator upon the Assumpsit of the Deceased aver he had Assets after Debts and Legacies paid So by Hobart 297 and Coke on Littleton 373. it appears that if a Tenant disclaim upon an Avowry in Replevin he shall have Judgment tho' it be false For no Averment will lye against a violent Presumption though it be false By the Book of 34. H. 6. 42. and of 9 Ed 4. 4. an Averment may be had against any part of the Rolls or Records of County-Courts Hundred Courts Courts-Baron or other Courts belonging to Lords of Mannors But by Dyer 348. 177. no Averment will lye against such a Retorn as is definitive to the Trial of the thing Retorned as the Retorn of a Sheriff upon his Writs the Retorn of the Mayor Aldermen and Sheriffs of London upon a Writ of Habeas Corpus sent to them and the like But if it be such as is not Definitive as upon a Rescous or the like there an Averment and a Trial upon it may lye So if it be such a Retorn as may endanger a mans Life or Inheritance Also by the Statute of 1 Ed. 3. cap. 3. and Goldesbrough 129 130. and Croke 2 Part fo 13. an Averment will lye against the Bayliffs of Franchises so that the Lords thereof be not prejudiced thereby The same Law of Certificates For by Co. Lib. 7. 14. Lib. 9. 31. and Bro. Abr. 332. no Averment will lye upon such a Certificate as is a Definitive Trial in Law of the thing Certified as the Certificate of a Bishop touching Bastardy Excommunication Marriage c. But by Co. Lib. 7. 14. Lib. 8. 121. and Leon. 1 Part Case 285. an Averment may lye and shall be received against a Certificate which is only to give Information and in the Nature of a Trial and may also lye against a Certificate upon a Commission out of any Court and may likewise be received against the Certificate of Commissioners that affirm a man to be a Bankrupt But by Bro. 332. If a Bishop Certify that such a Parson doth not pay his Tenths Iuxta formam Statuti no Averment shall be received against it And in More Case 295. an Averment will not lye against a Justice of the Kings Bench or Common Pleas and the Custos
Ed. 4. and 24 Ed. 3. Abridged by Brook in the Title of Conditions 61. it seems in that Case to be to the contrary because Executed and therefore not like where an Annuity is granted pro Consilio The like where one holdeth to Inclose taking the ancient Pale or where one granteth to me an Annuity to have a Gorse or a Gutter in my Land because an Easment And by 15 H. 7. 10. If you Covenant to serve me and I to give you Five Pounds for your Service Or you Covenant to Marry my Daughter and I in like manner to give you Twenty Pounds as a Marriage Portion If you serve me not or Marry not my Daughter I may plead the same in Bar. Otherwise if the Covenant on either part had been expresly and not depending upon the others Act. Next shall be shewn In what manner one shall plead in Bar the Performance of a Condition of an Obligation And First Touching the Performance of Covenants in Indentures omitting the variety of Ancient Books it appears 27 H. 8. 1. and 33 H. 8. Brook Covenant 35. That the Defendant ought to plead the Indenture and the special manner particularly how he hath performed every Covenant See also accordingly 10 11 Eliz. Dyer 279. and 28 H. 8 Dyer 26. But as it seems there need not aver quae sunt omnia singula Conventiones c. because referr'd to a Matter in Writing The like of a Record And for that Reason it seems of necessity that he need not to plead prout in eadem Indentura Quaere tamen But if not referr'd to Writing or Record as hath been said before then it shall be otherwise As if I am bound to Enfeoff you of all my Lands in Dale I must shew the Number of Acres and plead also quae sunt omnia c. Yet now at this Day the Course of the Practice is notwithstanding the Covenants are reduc'd into Writing after they are recited in the Plea to insert this Clause Prout per eandem Indenturam plenius apparet And as to Pleading Performance of the Conditions of Obligations they d◠vary according as the several Cases are And First By 28 H. 8. Dyer 30. the Condition was That the Obligee should peaceably enjoy c. And the Defendant pleaded That the Plaintiff did peaceably continue his Possession until such a day at which time the Lord distrained for Rent and a good Plea But 30 H. 8. Ibidem 43. where the Condition was to Warant and save harmless against Lord and King and to have and peaceably Enjoy The Defendant pleaded Quod habuit pacifice gavisus fuit where said by divers that the Plea is ill and but Argumentative that is he hath peaceably Enjoyed the Land Ergo he hath Waranted the Land and saved the Plaintiff harmless For he might be Impleaded in a Praecipe and the other not waranted and yet hold it peaceably or might be distrained for Issues lost c. and therefore ought to have pleaded expresly quod non fuit dampnificatus per Regem nec per aliquem alium or that the Plaintiff was Impleaded and he did warant c. Quaere inde for Baldwin è contra The Condition of an Obligation 2 Eliz. Dyer 184. was to warant defend or save harmless as well the Person of the Obligee as the Premisses against one Culpepper where the Defendant alledged in his Bar a former Lease by reason whereof neque le Obligee nec les Premisses possint nec potuerunt esse dampnificat ' per praedictum Culpeper To which the Defendant Replied the Special Matter in Law without Concluding Et issint dampnificat ' where holden the Defendant's Bar was ill and that he ought to have pleaded Non fuit dampnificatus or the Special Matter and Conclude Issint non dampnificatus and the Plaintiff's Replication for want of a proper Conclusion ill also And 3 Eliz. Ibidem 186. in the like Case the Defendant Pleaded quod Quer ' non dampnificat ' fuit per A. and the Plaintiff in his Replication shewed a Special Damage and Concluded Et issint dampnificat ' and the Defendant by his Rejoynder pleaded Nul tiel Record quod nota Note also That in an Action of Covenant brought 28 H. 8. Dyer 31. One of the Covenants in the Indenture was That the Defendant ought to make and suffer for the Assurance of the Plaintiff all things that should be devised by the Counsel of the Plaintiff if he were required And the Defendant taking Protestation for Plea said that he was not required To which the Plaintiff Replied That I. S. was of his Counsel who devised a Release which he required the Defendant to Seal but he refused to do the same To which the Defendant Rejoyned Que ne Refusa pas and by all the Court holden a Departure and that the Defendant ought to have Pleaded at first Non requisitus fuit and the Plaintiff in his Replication needed not to have spoken of any Refusal But where the Condition was for the Performance of an Arbitrement of I. S. touching c. so as it be delivered in writing before c. The Defendant Mich. 7 8 Eliz. Dyer 242 243. pleaded by Protestation non fecerunt c. Pro Placito quod praedicti Arbitratores ante c. non deliberaverunt c. Upon which the Plaintiff in his Replication shewed when and where the Arbitrators made the Arbitrement and the several parts thereof and alledged the Breach in one Point Upon which Replication the Defendant did Demur because in his Plea he answered not the delivery of the Arbitrement but by a glance and not directly Note the words of the Condition and the Plea notwithstanding quod Arbitratores non deliberaverunt c. and good It appears by Cro. 2 Part fo 352. in the Case of Staine against Wilde that where there was Debt brought upon an Obligation to perform an Award of all Suits and Demands between the Parties so as it be made of and upon the Premisses ready to be delivered to the Parties before such a day c. and that they made such an Award de super Praemissis scil that the Plaintiff should have and enjoy a Horse in Controversy between them and that the Defendant should pay him 3 l. before Michaelmass towards his Charges and they should Release each to other all Matters whatsoever between that and Michaelmass And the Plaintiff assign'd Breach for Non-payment of the 3 l. And on Demurrer held good for the Plaintiff For tho' it was pleaded That the Arbitrement was made de super Praemissis yet these General words will not help the Plaintiff unless he avers that there were no more Causes between them and then the Release appointed being void there is nothing Ordered for the Defendant's benefit See more of this 7 H. 6. 6. 39 H. 6. 9. 2 R. 3. 18. and 22 H. 6. 22. So in Tyer's Case Trin. 23 Car. 1. in Banco
Tender and a Refusal by the Plaintiff and the Plaintiff took the Refusal by Protestation and Traversed the Tender as he ought because no Refusal without a Tender See Dyer 28 H. 8. 31. In Debt upon an Obligation the Condition whereof was to make an Assurance of Lands upon Request as by the Counsel of the Plaintiff should be devised And the Defendant pleaded by Protestation That the Plaintiff's Counsel made no Devise and for Plea That he was not Required To which the Plaintiff Replied That his Counsel devised a Release which he Requested the Defendant to Seal and he Refused And the Defendant would have Traversed the Refusal and could not but ought to maintain his first Plea that is the Request and the Plaintiff should not have mentioned a Refusal but have Concluded the Issue upon the Request the Defendant offering a Negative Plea before And so 36 H. 6. 15. the Defendant in Debt did plead an Award to pay 10 l. at such a Place which he was ready at the time to do and the Plaintiff came not to receive the same There the Plaintiff may say That he was there ready without Traverse because the Defendant had Tendred a Negative Plea before Then Of the Issue Negative Pregnant which is a Negative that implies or contains in it self an Affirmative As where an Action Information or such like is brought against one and he pleadeth in Bar to the Action Or otherwise a Negative Plea which is not so direct an Answer to the Action but that it includeth also an Affirmative As if a man be Impleaded to have done a Thing on such a Day or in such a Place denies that he did it Modo forma declarata which implies nevertheless that in some sort he did it Or if a Writ of Entry in Casu proviso be brought by him in the Reversion upon an Alienation of Tenant for Life supposing that he hath Aliened in Fee which is a Forfeiture of his Estate and the Tenant to the Writ saith That he hath not Aliened in Fee this is a Negative wherein is included an Affirmative For tho' it be true that he hath not aliened in Fee yet it may be he hath made an Estate-Tail which also is a Forfeiture and then the Entry of him in the Reversion is Lawful Vide 33 H. 8. Br. Issue 81. Where upon an Information for buying Cloaths at B. contra formam Statut ' Ne achata al B. contra formam Statut ' ill but ought to be Ne achata pas Modo forma c. Yet 16 Ed. 4. 5. One pleads a Release puis le darein Continuance Nient son fait puis le darein Continuance a good Issue And 12 Ed. 4. 4. One did plead a Feoffment by Deed and the other Replied Que ne Enfeoffa pas modo forma and good without answering to the Deed. As in a Formedon to Count of a Special Gift the other-ought to say Ne dona pas modo forma Where it s said by Littleton That if the Plaintiff proveth not the Feoffment by Deed he faileth Now Modo forma are Words of Art in Pleading namely in the Answer of the Defendant whereby he denies the Thing laid to his Charge Modo forma prout the Plaintiff hath Declared against him As the Civilians in like case say Negat allegata prout allegantur esse vera And it is to be Observed that upon Issues these Words Modo forma are not always of Substance as appears by Littleton in his Chapter of Releases where the Disseisee enters upon the Heir of the Disseisor who brings his Writ of Right Or where as before one in a Writ of Casu Proviso doth Count upon an Alienation in Fee and the other doth say Ne Aliena modo forma and found that he Aliened for Life Or where the Defendant in Trespass doth plead That the Plaintiff doth hold of him by Fealty and Ten shillings Rent and so demandeth Judgment of the Writ Vi armis and the Plaintiff Replieth Que il ne teigne modo forma And if the Verdict find that he holdeth only by Fealty yet good And so in Trespass of Battery If the Jury upon the General Issue find the Defendant Guilty at any other day and place before the Plaintiff supposeth his Trespass But see more of Issues afterwards in the Titles Traverse Pleading c. The next in Order is touching Traverse in Pleading which signifies in Pleading to deny some Point Matter or Thing alledged on the other side the formal Words of which are in our French Sans ceo in Latin Absque hoc and in English Without that And first to begin with the Time It is plain as hath been already said that if the Defendant in Trespass pleads Non Culpabilis he shall have no advantage of the Time but the Jury may find him Guilty at another day be the Trespass Transitory or Local And by Littleton in his Chapter of Releases so 13. In Trespass of Battery and the General Issue pleaded the Jury may find the Defendant Guilty at another day and place And so is also 19 H. 6. 47. and 39 Ed. 3. all in the Title of Traverse But in Case of Trespass and other Actions if the Plaintiff in his Declaration lay a time before his Cause of Action the Defendant in all Cases upon the General Issue shall have advantage thereof But on the contrary if once he have Cause of Action it so still continueth until he have discharged the same and therefore he may lay it after the day The like as it seems upon the Issue of Non dimisit for as before Littleton in the Chapter Releases the Words Modo forma in an Issue be not always of Substance Quaere tamen if not as if in the Number of years And as divers Books be In many Cases where the Defendant doth Iustify he may Traverse the Time before and in some Cases the Time after and in other some the Time before and after And therefore where the Defendant in Trespass of Lands or Goods maketh himself Title by a Feoffment Gift or otherwise which still is in force such a day after he shall only Traverse the Time before the Trespass supposed And so is 15 Ed. 4. 23. 22 H. 6. 29. and other Books in the Title of Traverse And where by a Lease or other Title made and determined before the Day of the Trespass there he must Traverse the Time after and before his Lease But whether the Plaintiff may there Traverse that Iustification hath been a Question because in so doing he Departeth from his Declaration And the better Opinion of the same Book of 15 Ed. 4. 23. is That the Plaintiff may But 22 Ass. 36. the Defendant in Trespass of Battery did plead a Release and Traversed the Time and the Plantiff Replied the Release was obtained by Duress and by the better Opinion no Plea for the Reason aforesaid And 2 R. 3.
Warrant to his Servant or for Suspicion of Felony or the like And as 5 H. 7. 9. where the Defendant doth Justify by Custom of Faldage Or 9 Ed. 4. 22. where the Defendant in Trespass Justified for Wreck and in many other Cases where the Defendant doth Justify by Matter in Fait the same General Replicatiâ—â— De son Tort demesn hath been admitted Next of the Plea of Que Estate which signifies verbatim Which Estate or the Same Estate and is a Plea whereby a man Entitling another to Land c. saith That the Same Estate himself had he had from him As in a Quare Impedit the Plaintiff alledgeth That such Four Persons were seised of Lands whereunto the Advowson in question was appendant in Fee and Presented to the Church and that afterwards the Church became void Que Estate that is Which Estate of the said Four Persons he hath now during the Vacation by virtue whereof he Presented c. Vide Bro. 175. Tit. Que Estate Co. 1 Inst. 121. And see also 2 H. 6. 10. where holden That the Plaintiff in his Declaration or Title shall not Convey to himself by a Que Estate Otherwise in a Replevin after Avowry for after Avowry the Defendant is become Actor And so is 3 H. 6. 28. and accordingly are divers Books in Brook in this Title Que Estate And Mich. 1 2 Mar. Dyer 172. And yet as appears in the same Title 2 H. 4. 13. and other Cases there that where the Defendant by his Bar doth admit the Plaintiff Tenant to the Land there the Plaintiff in his Replication Conveying to himself Title to the same may do it by a Que Estate And by the Book 3 H. 6. 11. 22 H. 6. 34. and divers other Books in this Title in Brook The Avowant may in his Avowry Convey to the Plaintiff an Estate in the Tenancy by a Que Estate because he is a Stranger to his Title which seemeth Reason And it appears by the same Book in Dyer fo 172. That a Term cannot be Conveyed in Pleading be the Party Actor or otherwise by a Que Estate And to that Intent is 7 Ed. 3. Brook in this Title 31. be the same a Term or Estate for Life or in Tail And yet there 38 Ass. 4. the Defendant in an Assize did Convey from T. by Statute by a Que Estate And see 5 H. 7. 39. 40 Ass. 28. 15 Ed. 4. 16. and 2 H. 4. 20. of Tenant in Tail especially if the Party be to aver his Life And see in this Title Bro. 12 Ed. 3. That the Tenant may Rebut by reason of a Waranty by a Que Estate but not be Vouched And see 22 H. 6. 13. and 26 Ass. 8. But 10 Ass. 5. to the contrary And see also the Books 11 H. 4. 81. 37 H. 6. 32. and 1 Ed. 6. in this Title 4. That a Que Estate is not to be alledged in any of the Mean Conveyances but to the Tenant himself without shewing Coment notwithstanding the same hath been suffered And it appeareth also that in Pleading a Que Estate the Party by whom such Estate is Conveyed must be shewed in Pleading to have a Good Estate as by Recovery Feoffment or Release or the like and not sufficient to say That A. was seised whose Estate the Defendant hath And so is 7 Ed. 4. 26. and 9 H. 7. 14. Vide 21 Ed. 4. 21. That Tenant in Dower coming in by Law Conveyed her Estate by a Que Estate And so 6 Ed. 4. 12. although he came to the Land by Disseisin And so seems 31 H. 8. Bro. 48. if he Recover the same but against that is the Book of 39 H. 6. And it appears also That a Thing that lieth in Grant cannot be made Title to by Que Estate although by way of Bar. And so 11 H. 4. 89. of an Hundred And so 24 Ed. 3. 22. and 31 Ass. and 12 H. 7. 16 18. of a Rent or Common except it be incident to some thing that may pass without Deed unless he shew a Deed to maintain his Prescription And although in many Cases it be sufficient Title yet as it seems 6 Ed. 4. 12. is never Traversable but where both Parties Claim by one Person And yet see 19 H. 6. 56. and 11 H. 4. 81. where the Que Estate Traversed although the Party that did take the Traverse did not Claim by the same Person And see in that Title 6 Ed. 4. 12. and 18 Ed. 4. 29. That where the Defendant doth give to the Plaintiff Title by a Que Estate there the same is Traversable by the Plaintiff Next in Order we shall say something of Double Pleas. A Double Plea is that wherein the Defendant alledgeth for himself Two several Matters in Bar of the Plaintiff's Action whereof either is sufficient to Effect his Desire which shall not be admitted for a Plea As if a man alledge Several Matters the one nothing depending upon the other the Plea is accounted Double and not admittable but if they be mutually depending each upon the other then it shall be accounted single And touching Double Pleas see thereof the said Title in Brook's Abridgment as namely where one Answer will make an End of all as Ne dona pas and the like there no Doubleness or if the Defendant plead divers Matters and rely upon One of them or do shew in his Pleading divers Matters of Inducement or of Suspicion or doth alledge Two Presentments in a Quare Impedit the one in the Guardian or Particular Tenant and the other in the Party himself And 40 Ed. 3. 11. divers Matters alledged to oust the Conusance 11 H. 6. 10. to prove a Maintenance the Party may shew divers Matters And Ibid. 11. That Appendancy and Prescription is double But 13 H. 8. è contra And by divers Books a Lease and Release double And where one bindeth himself in 10 l. in the Indenture to perform divers Covenants the Plaintiff can declare but upon the Breach of one if he demand the 10 l. Otherwise if he bring an Action upon the Covenants as appears by 11 Ed. 4. 10. And by 9 H. 7. 23. One pleads that he was seised until by the other disseised against whom he did Recover and not Double because the one is Conveyance to the other And by 5 H. 7. 36. where one cannot come to the one Plea without the other there no Doubleness as Seisin and Feoffment and the like And 4 H. 7. 17. and 1 H. 7. 14. And by 5 H. 7. 1. Non dederunt arbitrium in scriptis Double And by 21 H. 7. 10. a Collateral Waranty and Assets Double and the like Whereof see more at large in this Title of Double Plea in Brook and Fitzherbert and in Partridge and Strange's Case in Plowden's Com. and in that Case in Dyer That Barganizasset and Concessisset not double because words of one signification And accordingly also 35 H. 6. Then ought
plead a Recovery of Twenty Acres Inter alia ill but ought to plead That he did Recover Forty Acres whereof these Twenty Acres were parcel Nor shall he plead That I. S. was seised of Twenty Acres Inter alia and did Enfeoff him Inter alia but ought to plead as before Yet said there it might be permitted in pleading a Feoffment And the same Case of Dyve and Maningham taketh this difference between the Pleading of an Act of Parliament and a Recovery quod nota Where holden also That the Defendant in that Action could not take advantage of the Statute of 23 H. 6. being but Particular although it be touching all Sheriff's in General without Pleading but containing divers Things may well be pleaded Inter alia or so much as doth avail him And in Fulmerstons and Steward's Case there either of the Parties may take advantage by Pleading of so much of the Statute of 31 H. 8. of Monasteries But in the Case of Debt there brought by Partridge against Strange and Croke upon the Statute of 32 H. 8. of Buying of Titles holden by all the Justices except Mountague That the same being General need not Specially to be recited as to pray to be Received and to Demur Generally upon a Vouchee out of the Lieu. But by all the Iustices there the Misrecital maketh the Declaration ill For in Pleading many times a thing not Material is made Effectual And there in Debt by Stradling against Morgan a Receiver upon the Statute of 7 Ed. 6. for Taking great Fees there set down by Statute Exception was taken for not reciting the Statute of 34 H. 8. that set down the Fees And in Williams and Barkley's Case in Coke's Reports although one did but plead part of that Act which did Enable the Queen to Take yet sufficient where said That every one hath Interest in the King therefore the same is a General Act. See the like Learning in Dyer as 28 H. 8. 27. where a Condition of a Lease made to a Parson was That he should not Grant the Estate over if he will have advantage of the Statute of 21 H. 8. which Enacteth That such shall be granted their Terms over it must be Specially pleaded because Particular as a Private Custom And this Statute is but General in Particularity as a Statute that Pardoneth all that were of the Party of Richard the Third of the Statute De Medietate Linguae or if a Statute were made That Tenants for Life shall not be punished in Wast and the like And as it hath been taken of late in all Cases of Pardons by Act of Parliament if any Persons be Excepted for the same thing And Ibid. 7 Ed. 6. 83. by the Better Opinion in an Assize of Tithes given by the Statute of 31 H. 8. the Plaintiff in his Plaint need not to mention the same Statute as well in respect the said Statute is General as that it is to give Jurisdiction to the Common Law as a General Pardon by Parliament and Resembled it to the Case of 14 H. 4. were Conusance granted and after a New Action is given by Parliament the Grant shall not extend to the same But otherwise where the Action was before and other Things granted to be within the same Where said also That in Pleading a Feoffment by Cestuy que Use according to the Statute of Ric. 3. need not to mention the Statute or in Pleading a Feoffment to use at this day to say That it was Executed Vigore c. of the Statute of 27 H. 8. Or in Pleading a Devise to Recite the Statute of Wills quod nota Then How one shall Plead by a Per Nomen And First 30 Ed. 3. Fitz. Tit. Feoffments 18. One pleaded a Grant to I. S. A. sa Feme Per Nomen I. S. Uxoris ejus And 1 H. 7. 28. the Tenant in Assize did plead a Feoffment de praedicta terra per Nomen omnium Terrarum quae sibi discendebant de parte Patris and took no Averment because of the word Praedict ' And so 33 H. 8. Bro. Tit. Pleading 143. in a Praecipe de Manerio de B. the Tenant pleaded a Recovery de praedicto Manerio Per Nomen c. So if I. S. pleads a Feoffment made to him Per Nomen I. N. Where holden also That he may plead the Feoffment Generally of the same thing without a Per Nomen and the Variance in the Deed not Material But there said to be better to Plead it with a Per Nomen Touching which see more in Dyers and Plowden's Reports as namely 7 Ed. 6. Dyer 83. where in Serjeant's Case the Plaint being of a Portion of Tithes issuing out of 300 Acres in N. did make his Title in the same Plaint That Hen. 8. dedit concessit praedictam Portionem inter alia Per Nomen totius Portionis c. provenien ' de Terris Dominicalibus Archiepiscopi Eborum jacen ' in N. nuper Monasterii dudum spectan ' adtunc vel nuper in Tenura A. and did not Aver in facto That the Lands put in View were the Demean Lands of the Archbishop in the Tenure of A. and yet as there seemeth good but not for the Reason aforesaid but in respect there was other Certainty enough As 26 Ass. of a Grant of 20 Carucat ' Ligni in Bosco de D. quas habuit de dono Patris that Deed De dono Patris needs not to be shewn or averr'd because of other Certainty enough And so 2 Ed. 4. where one doth Release all his Right in White-Acre quem habuit per discensum c. Where said also That if one of the Recitals be false yet the Patent good enough because Certain in some part and then in Averring that which was false might be hurtful and that the Counsel should then deserve their Fees ill Where said also That if false in all yet the Patent good and aided by the Statutes of 34 35 H. 8. of Confirmations c. but there not stood upon but if the Patent had been of the Land which the King had by the Attainder of I. S. or in a Release in a Common Person 's Case of all such Lands as discended c. there although pleaded by a Praedict ' yet an Averment ought to be The like Learning where sufficient Certainty is in the Patent as 3 4 Mariae in Wast between Wyburn and Dorril The like in Wortley's Ejectione firmae in Plowden where the Grant was of all that his Farm in the Occupation of A. needs no Averment of the Occupation But in Throgmorton and Tracy's Case his Per Nomen must not be direct contrary or repugnant Then Of the word Continetur in Pleading First Holden 28 H. 6. 3. that to plead Quod patet by the Obligation That A. and B. was bound Joyntly ill but ought to say In facto that they were bound But 21 H. 6. 51. good Pleading of a Condition of an
Whole which is to be Tried first For if that be against the Plaintiff tho' he should have Verdict on the other he can have no Judgment But for the Inconveniency and for that this Plea to the Whole comes after the Venire facias and the other was before therefore 't was Tried but if both had been before the Venire facias it could not have been and 't was found for the Plaintiff and Judgment was had with a Cesset Executio till the other was Tried for the Concord was laid in another County So the Plaintiff Released to him and took Execution tho' the Judgment was on the first Plea CHAP. XII Of Executions EXecution is the last Performance of an Act as of a Judgment in a Suit viz. Where Judgment is given in any Action That the Plaintiff shall Recover the Land Debt or Damages as the Case is and where a Writ is awarded to put him in Possession or to do some other thing whereby the Plaintiff may be the better satisfied his Debt or Damages that is called a Writ of Execution and when he hath the Possession of the Land he sues for or is paid off his Debt or Damages or hath the Body of the Defendant awarded to Prison then he hath Execution And where the Plea is in an Inferiour Court as County-Court Hundred-Court or Court-Baron and they defer Execution in favour of either Party or other Cause then the Party may have a Writ de Executione Iudicii Vide Co. Lib. 6. fol. 87. a. Where is said to be two sorts of Executions the one final the other with a quousque tending to an End An Execution final is that which makes Mony of the Defendant's Goods or Extends his Lands and delivers them to the Plaintiff which he accepts in Satisfaction and is the End of the Suit and all that the King 's Writ Commands to be done The other Execution with a Quousque is tending to an End but not final as in the Case of a Capias ad Satisfaciendum c. which is not final but the Body of the Party is to be taken to the intent to satisfie the Plaintiff and his Imprisonment is not absolute but until the same be performed And by Co. Lib. 8. 141. the Method of obtaining these Executions are by certain Iudicial Writs some of which are against the Person some of them against the Goods and Chattels some of them against the Lands and some against the Body Goods and Lands And by Co. ubi supra The Execution for Debt is Fourfold 1. Of Goods only by Fieri facias 2. Of the Moiety of Lands by Elegit 3. Upon a Statute or Recognizance 4. Of the Body by Capias ad Satisfaciendum Then Touching Executions upon Iudgments by Writs of Capias ad Satisfaciendum First Shall be declared against what Person an Execution will lye by Capias As namely 26 H. 8. 7. Not against an Abbot but upon a Testatum the Plaintiff may have an Elegit into another County Otherwise of a Knight the like as an Abbot of a Bishop Duke c. if it be not upon a Rescous or other Contempt as 11 H. 4. 15. and other Books are And by Co. Lib. 8. 141. Lib. 5. 88. Lib. 6. 53. Lib. 3. 12. Magna Charta 2. 18. Westm. 2. 11. This Writ of Execution may not be had against a Duke Earl or Baron or their Wives but in some Special Cases nor against an Heir or an Executor but in some especial Cases Then In what Actions and other Cases Execution may be had by Capias See first 34 H. 6. and 48 Ed. 3. Bro. 12. That in Scire facias upon a Recognizance no Capias Yet 7 H. 4. 34. granted for the King in a Recognizance for the Peace Nor against Executors in whose hands Assets were found if not as it seems upon a Devastavit Return'd See more touching Executions against Executors in that special Title Devastavit in Brook's Abridgment And in 42 Ed. 3. 11. if one Recover in an Action upon the Case against an Hostler because he is not charged upon a Wrong but a Laches no Execution lieth by Capias The like in an Action upon the Statute of Hue and Cry And so is 42 Ass. 17. in the Case of an Hostler although there was a Capias in the Mean Process But 2 H. 4. 6. and Roll. Abridg. 898. one in Dower did Recover Damages and could not have Execution of them by Capias because no Capias in the Mean Process And so 11 H. 7. 15. in an Assize And 7 H. 6. 45. No Execution by Capias against one not Party to the Writ as there where upon Issue in Detinue found against the Garnishee the Plaintiff recovered the Thing against the Defendant and Damages against the Garnishee and could not have Execution of the Damages by Capias And Note this Difference 40 Edw. 3. 25. That in Detinue of a Bag or Box of Writings Execution lieth by Capias Otherwise if there be one or more Writings in Certain quod Nota. Vide Pluis in Bro. Tit. Capias and Process Court Baron Antient Demeasn Statute Merchant c. And yet as appears 11 H. 7. 15. In an Assise where no Execution by Capias lieth against the Party for the Damages yet if the Disseisin be found to have been with force and the Party to be taken by Capias pro Fine either within or after the year as the said Book is he shall remain in Execution for the Party Quod Nota Et quaere inde And so is 7 H. 4. 39 40. Not mentioning whether the Capias were within the year or after for in all other Cases the difference is taken where the Defendant is taken within the year upon the Capias pro Fine and where after For in Fitz. Nat. Br. 121. In the one Case he shall remain in Execution without the Plaintiffs Request and in the other not altho' he do request the same And 7 H. 6. 5. Somewhat doubtful if the Plaintiff request not the same But 7 H. 4. 4. is clear without request of the Plaintiff because the words of the Writ are Ad Respondend ' tam Nobis quam Parti And see 14 H. 7. 15. and 15 H. 7. 5. In an Assise where the Disseisin was found with Force and the Record removed and the Defendant taken pro Fine Regis within the year yet could not remain in Execution at the request of the Party because there he could not have Execution without Scire Facias And so is 1 H. 7. 20. When it is after the Year or in the time of another King But as appears 11 Ed. 4. 67. This is no Execution for the Party but at his Election for altho' as the Case was there he was discharged by consent of the Plaintiff upon Recognizance given yet the Plaintiff had at his Pleasure a new Execution And so is 4 Edw. 4. 16. But more doubted whether there the Gaoler may
Querela But if a Capias ad satisfaciendum be had against one of them in this Case so as there is such an Execution as is a Satisfaction no other can be had against him or against his Heir or Executor if he die For where the Law gives several kinds of Execution by way of Choice and he Chuseth a Capias ad satisfaciendum and the Body is taken it cannot be for part as in a Fieri facias But see the Statute of 21 Iac. 1. cap. 24. how the Law is thereby changed in this Point For it is Enacted by that Act That he or they at whose Suit any Person is charged in Execution for Debt or Damages recovered their Executors or Administrators may after the Death of the Person so charged in Execution lawfully sue forth New Execution against the Lands and Tenements Goods and Chattels of the Person so Deceased in like manner as if the Person Deceased had never been in Execution And see Roll's Abridgment 903. That if one Recover in Debt against I. S. and then Outlaw him on the Judgment and afterwards I. S. is taken within the Year by Capias Utlagatum at the Suit of the King and dies in Prison before any Prayer made by the Plaintiff That he might be in Execution at his Suit This is no Satisfaction therefore the Executor or Administrator of him that is dead may be charged for the Debt notwithstanding he was in Execution by being taken upon the Capias Utlagatum But by Anderson 1 Part Case 273. if one that hath an Execution of Land Release one Acre of the Execution all is Extinct by the Release of the Execution in one Acre And by Hobart 60. If the Party in Execution Escape of his own wrong the Plaintiff can have no other Execution of him or of his Executors But if he take one in Execution where there are several Debtors by one Obligation there he may take another after the Escape of that one or he may have Satisfaction from the Sheriff upon the Escape at his Choice And by Co. 5 Part 86. and 6 Part 13. and 8 Part 152. and Dyer 152. If the Defendant pay the Mony he is discharged But if the Plaintiff makes any Release or other such like Act to the Defendant being in Execution amounting to a Discharge this will not be a Discharge Ipso facto but by this means he may have a Discharge And yet if the Plaintiff himself shall deliver the Prisoner out of Execution he is thereby Ipso facto discharged of the Execution for ever So if the Plaintiff doth acknowledge Satisfaction upon Record So by 13 H. 7. 1. Plowd Com. 36. and 33 H. 6. 47. If one taken in Execution upon a Capias ad satisfaciendum doth Escape and the Plaintiff bring his Action against the Sheriff or hath a Cepi Returned on the Writ and it be Filed by this the Defendant is discharged against the Plaintiff for ever But if no Cepi be Returned nor Action brought against the Sheriff the Law will Adjudge the Party to be out of Execution But by Co. 5 Part 86. If Two be in Execution for one Debt on a Bond made by Two and the Sheriff suffers one of them to Escape this will not discharge the other till the Plaintiff hath Recovered his Debt of the Sheriff But by Co. 8 Part 143. and 38 H. 6. 4. If one be in Execution upon a Capias ad satisfaciendum and the Court adjudge the Judgment or Execution Erroneous and so null it by this the Defendant is discharged of that Execution Yet by Fitz. Nat. Brev. 146. If Two be in Execution for one Debt and one of them dies under Execution that will not discharge the other But 38 H. 8. Dyer 6. One in Execution being a Burgess of the Parliament and discharged by a Writ of Privilege doubted whether discharged for ever But by the Statute of 1 Iac. 1. cap. 13. it appears That if a Prisoner be delivered out of Execution by Privilege of Parliament it is no discharge but after the Privilege is gone he may be taken again So Pasch. 30 H. 8. Dyer 62. Trewynyard's Case where Trewynyard being a Burgess of Parliament was taken upon an Exigent after a Capïas he brought a Writ of Privilege of Parliament and the Sheriff let him at Liberty In this Case it was Resolved First That the Privilege was Grantable notwithstanding the Execution because the King and Realm have an Interest in the Body of every Burgess of Parliament and the Common-Weal shall be preferred before the Interest of any private Person Secondly That after the Parliament ended he might be taken in Execution again For that the Plaintiff shall not be prejudiced in his Execution by the Act of the Law which doth Wrong to no man See 3 Ed. 6. Dyer 66 67. where the Sheriffs of London in Debt upon an Escape by going at large by Baston in London did plead That their Predecessors let him at large and good And Note by Dyer 4 5 Mar. 162. 10 Eliz. 275. and 12 13 Eliz. 206. If the Prisoner have the King's Protection to go at large by Baston it is an Escape and the Warden of the Fleet may be Charged upon an Escape And see the same Book of Dyer 10 Eliz. where Debt was brought against the Marshal of the Kings-Bench or his Deputy And see Plowden's Commentaries in Platt's Action of Debt against the Sheriffs of London where it seemeth That by the Custom of the City of London one in Execution in Ludgate may go by Baston within London but otherwise in Southwark But Note the same Book of Dyer in 3 Ed. 6. That the Sheriffs of London were there Charged for suffering one in Execution in Ludgate to go at large in London by Baston quod nota Then Where the Act of the Court of the Law or of the Plaintiff doth discharge the Party of the Execution As namely 24 Ed. 3. 44. If one recover the Land and Body in a Writ of Ward and Release the Body the Land is thereby discharged But otherwise of a Grant The like seemeth 40 Ass. although the Land be Extended and Granted over The lik in Popâ—'s Case in Plowden's Commentaries If the Cognizor after Execution Enfeoff the Cognizee of part but it is otherwise before Execution for there the Lands be in the Hands of the Cognizor and his Body is Charged See 6 Ed. 4. 4. and 24 Ed. 3. 45 46. That if one in Execution be Outlawed or Condemned for Felony and afterwards have his Pardon yet touching his Body the same shall still remain in Execution Notwithstanding by the same Book of 6 Ed. 4. if he take himself to his Clergy he shall be out of Execution And so seemeth the Book 7 Eliz. 248. but ibid. 261. è contra See hereof Bro. Abr. 272. And see 10 Eliz. 275. That one in Execution by Agreement of the Parties and the Chief Justice went at large for a
Issue viz. Et de hoc ponit se meaning the Defendant super Patriam Et praedictus Willielmus the Defendant again for Iohannes the Plaintiff similiter Per Cur ' these are but Misprisions of the Clerk and not Errors and shall be amended being like to the Mistake in 10 H. 7. 23. and 11 H. 7. 2. where Defendens was written for Querens and Iohannes for Rogerus and amended by the Advice of all the Justices And by Coke Chief Justice Misprisions were amendable the same Term at the Common Law because during the Term the Record is said to be in pectore Iudicis and not esteemed to be on the Roll so absolutely but that they may amend the same at their Discretions But the Justices of the Common-Pleas after a Writ of Error cannot at all amend the Roll where a Judgment was given the same Term and is mistaken in the Entry because the Roll is not a Record of that Term. And by 5 Ed. 3. this was so at the Common Law until the Statute of 14 Ed. 3 gave power to amend Misprisions in another Term. But 46 Ed. 3. the Case was that Defendens was mistaken for Querens but could not be amended because an Old Roll and the Statute gives Power only to amend New Rolls of the same Term they are Entred By the Statute of 26 H. 8. the Justices of the Common-Pleas have Power to amend a Plea-Roll in Misprision only but not Omissions Misprisions are Vicia Scriptoris Faults of the Clerk as the Declaration varying from the Writ or the Roll from the Original or the Mean or Judicial Process these by 19 H. 6. shall be amended if it be only in default of the Clerk But if in a Plea that be Omitted which should be Averred this shall not be amended because it ought to have been part of the Plea and cannot be said to be any Default of the Clerk but a meer Omission which makes the Plea imperfect So Mich. 5 6 Mar. Dyer 164. a Record came out of Ancient Demesn in Banco by Writ of False Iudgment and the Writ was Sub sigillo suo sigillis quatuor legalium hominum ejusdem Curiae which according to Fitzh Nat. Brev. fo 18. b. ought to have been per quatuor legales homines c. upon which the Court doubted if it might be amended but seemed to be of Opinion That the Plaintiff might have a New Writ to the Justices of the Common-Pleas to Authorize them to proceed to discuss the Errors in the Record which lay before them So 2 Mar. Dyer 105. a Common Recovery was suffered to Bar the Issue in Tail and the Warrant of Attorney was That Alicia po lo. suo for Elizabetha also the Writ of Error was de loquela quae fuit in Cur ' nostra coram Iustic ' nostris per breve nostrum It was a Quaere if it were amendable but Resolved in Blackmores Case Co. Lib. 8. fo 152. quod vide nota And see Brownl Rep. 2 Part fo 300. where a Writ of Error was brought by Frances Fulgham against Sergeant Harris in this manner Praecipe c. quod c. Franciscae Fulgham Viduae contrary to the Form of the Register which is quae fuit Uxor and not Widow and the subsequent words were rationabilem dotem Tenementorum quae fuerunt Francisci Fulgham quondam viri sui Per Cur ' this is Error for tho' it varies not in substance yet because it is contrary to the Form of the Register it shall not be amended So Cro's Iacobi 21 Merrel's Case in a Writ of Error of a Judgment in the Common-Pleas in Ejectment it was assigned for Error That the Plaintiff declared that I. S. 25 Martii Anno sexto Iacobi had demised to him for Seven years by virtue whereof he Entred and was thereof possessed until the Defendant postea scilicet Anno sexto did oust him After Imparlance the Plaintiff made a Second Declaration wherein he supposed the Ejectment to be done 26 Maii Anno supradicto and of this Ejectment the Writ was brought it was found against the Defendant and Judgment for the Plaintiff and whether it was Erroneous because no day was mentioned in the first Declaration was the Question Agreed That the first Declaration is the Principal and if any Matter of Substance be omitted in it it cannot be helped or amended by the second for that is but a meer Recital and therefore if the first be not good the Trial is Erroneous But per Cur ' the first Declaration was good for the Demise is laid to be 25 Martii sexto Iacobi which is the first Day of the year and the postea scilicet 6 Iacobi that the Defendant Ejected him is certain enough for the Year when the Ejectment was made and the Day of the Ejectment are not material being before the Action brought Then Of Errors in Fines upon Writs of Covenant and Common Recoveries upon Writs of Entry in the Post. For which see first Brownl Rep. 2 Part fo 300. where upon a Fine the first Proclamation was made in Trinity Term 5 Iac. the second in Michaelmass Term 5 Iacobi the third in Hillary Term 6 Iacobi when it should have been Hill 5 Iacobi and the fourth and fifth Proclamations were in Easter Term 6 Iacobi Per Cur ' This is palpable Error for the fourth Proclamation was not entred at all and the fifth was entred as of Hillary Term 6 Iacobi when it should have been of Hillary Term 5 Iacobi and so cannot be amended because it was of another Term. And see Cro's Iac. 77. Earl of Bedford's Case where in a Writ of Error to Reverse a Fine it was assigned for Error that the Writ was Praecipe c. quod teneat c. Conventionem c. de octo Mesuagiis duobus Toftis decem Gardinis and it was Certified de octo Mesuagiis decem Gardinis c. and Adjudged no Error But see Cro's Caroli fo 300. Done and Smithy's Case where a Writ of Error was brought to Reverse a Fine levied by Baron and Feme and others and the Writ of Covenant wat directed to the Coroners with this Clause fiat Executio brevis praedict ' per Coronatores ita quod Vic' se non intromitteret because the Sheriff was one of the Cognizees and this was Objected for Error because as there said if the Sheriff had been sole party to the Fine yet the Writ ought to have been directed to him because but a Summons for the Sheriff may summon himself But Resolved to be Error because a Doubt in Law if the Sheriff as Plaintiff may Execute a Writ upon himself and therefore the general Course is to direct the Writ to the Coroners to avoid such Doubt And see Co. Lib. 5. fo 38. Tey's Case where A. and B. his Wife levied a Fine of divers Mannors Lands and Tenements to I. S. and I. D. in several Towns in the County of E. in
is not Secondly 'T is Dans unum vulnus for unam plagam but that was Ruled well enough Thirdly The length breadth and depth of the Wound was not shewed but because it was shewed that he was shot through with a Pistol that was certain enough for they are but set forth to shew the Mortality Fourthly 'T was said Dans unum vulnus totaliter penetrans c. and thereto Objected That it was not the Wound but the Total did penetrate but that was Ruled to be 〈◊〉 enough for the Wound went through Fifthly There wanted the word Percussit for it was dans unum vulnus without the word Percussit and for that tho' it was shooting with a Pistol the Indictment was quashed as Insufficient And see Cro. 1 Part 334. an Indictment against Two for striking in a Church where the Grand Jury found Billa vera as to or 〈◊〉 Ignoramus for the other and Exceptions taken to it First Because the Bill is laid joyntly quod fecerunt sed non allocatur for that is but false Latin which of it self shall not quash an Indictment Secondly The Bill is contra formam Statuti and yet it doth not appear by the Indictment that the striking was with a Weapon and that lies not within the first Clause of the Statute and the second Clause gives only Excommunication to the Offender ipso facto and contra formam Statut ' cannot stand in an Indictment of Battery at Common Law So Leon. Rep. 2 Part 183 184. an Indictment was upon the Statute of 5 Ed. 6. 4. for Drawing in the Church upon one A. B. without saying That he did it with an Intent to Stab him and for that Cause holden to be ill and moreover for that it Concluded contra formam Statut ' it did not appear to be like to an Indictment at Common Law See Cro. 697. acc And see Noy's Rep. 171 172 173. an Indictment for striking one in the Church-yard quashed upon two Exceptions First Because it is laid quod extraxit Gladium percussit instead of Extraxit Gladium ad percutiend ' according to the words of the Statute which are If any person maliciously Strike in the Church-yard or Draw any Weapon there with an Intent to Strike c. Secondly Because the word 〈◊〉 was omitted in the Indictment which is a Material Error because expresly named in the Statute Then For Indictments of Nusances take these Rules See Cro. 3 Part 63. where an Indictment against one for making a Nusance in the Horse-way was quashed because it was not said the Kings-way or the High-way And Note by 22 Ass. an Indictment doth not lye for a Nusance done to a partilar Place for it must be â—aid to be done to all the King's Liege-People So Idem ibid. 148. an Indictment for stopping an High-way was said to be ad Nocumentum diversorum Ligeâ—runs Domini Regis c. and quashed because too particular for that thereby only is intended a Nusance to some not all the King's Subjects So Leon. 2 Part 183 184. an Indictment was for not Repairing a Bridge where said Ita quod Ligei Domini Regis ibidem transire non possunt ad Nocumentum eorum and for that Exception was taken to it because not said ad Commune Nocumentum for when the King's Subjects are named in an Indictment it ought to be expressed to be a Common Nusance So Mich. 16 Car. 2. in B. R. Rex versus Morris an Indictment for keeping a Glass-House ad magnum Nocumentum Subditorum Domini Regis was quashed because not said ad Commune Nocumentum and Serjeant Maynard doubted if this Offence were Indictable And see Cro. 3 Part 90. Leon. 1 Part 117. and 27 Ass. 6. one was Indicted at the Assizes Quare vi armis he inclosed Land wherein others had Common and Ruled That an Indictment lies not in this Case because it is no Publick but a Private Nusance and the vi armis ill for one cannot forceably inclose his own Land Lastly it was Objected That the Indictment did not lye here because Justices of Gaol-Delivery have no power to take an Indictment of Nusance And see Bendl. Rep. 152. an Indictment was Exhibited against one for Erecting a Wear in the River W. which Concludes ad Nocumentum omnium Inhabitantium in Comitatu H. and Resolved by the whole Court tho' not said to be ad Commune Nocumentum or Nocumentum omnium Ligeorum or Subditorum yet General enough because a Nusance to the whole County of H. And see Cro. Car. 274 275. an Indictment against one Quare vi armis he burnt his own House Iones and Berkly were of Opinion That it did not lye Vi armis because the House was in the parties own possession But Croke was of the contrary Opinion and said That if a Servant runs away with his Masters Goods committed to his charge the Indictment against him shall be Vi armis And Note That an Indictment upon the Statute of Hen. 6. of Forcible Entry Quod pacifice intravit ipsum expulit extratenuit was Adjudged to be ill for want of the words Vi armis manu forti So Cro. Iacobi 20. an Indictment upon the Statute of H. 6. not shewing how the Entry was Pacifice or Falso was holden ill by two Judges And Mich. 13 Car. 2. in B. R. an Indictment upon the same Statute saying Pasifice ingressus for Pacifice and having no Manu forti in the whole Indictment was for that Reason quashed and the Clerk of the Peace fined for it So Cro. Caroli 422. an Indictment for Erecting an House upon the High-way and streightning it ill for want of the words contra Pacem Mich. 16 Car. 2. in B. R. an Indictment was against one for Seducing a Man into an ill House and cheating him of his Mony By 29 Ass. 45. an Indictment against one as Communis Latro or Common Forestaller Champertor Conspirator c. without charging the Party with some particular Fact is not good But by 30 Ass. 37. an Indictment of Common Confederacy is And by 38 Ass. 11 12. an Indictment for taking Charters of Land quashed for not setting forth what the Charters were But Pasch. 18 Car. 2. in B. R. and Roll's Abridg. 2 Part 79. an Indictment against one for being Communis Oppressor was Ruled good upon Exception but the Court was of Opinion that Communis Forstallator is not good See Mo. Case 302. touching the words Communis Fur Latro c. Pasch. 16 Car. 2. in B. R. Resolved That an Indictment lies for the Breach of a Private Statute where no particular Penalty is provided if the Statute concern a multitude of Persons so as an Action of the Case will not lye But if it concerns a Particular Person or Interest an Action of the Case lies and not an Indictment An Information is a kind of Declaration as well at the Suit of the King as the